Judicial Disqualification after Caperton
Caperton is a wake-up call for states to take disqualification seriously. If they do, real disqualification problems can be resolved before they become serious due process challenges.
It is not every day that an issue of judicial administration makes national headlines, but such was the case with Caperton v. Massey Coal Company, an intriguing and appalling matter that has quite literally become the stuff of legal thrillers (See John Grisham's 2008 book The Appeal). The story began in 2002, when Caperton sued Massey in West Virginia state court for fraud and misrepresentation in their business dealings, and which culminated in a $50 million verdict for Caperton. Meanwhile, West Virginia's chief justice was up for reelection, and while post-trial motions in Caperton were pending, Massey CEO, Don Blan kenship, poured over $3 million of his own money into an independent effort to defeat the incumbent Chief Justice Warren McGraw and elect attorney Brent Benjamin to the West Virginia Supreme Court. Benjamin prevailed, declined Caperton's request to disqualify himself from hearing Massey's appeal, and cast the deciding vote in a three to two decision to reverse the judgment.
On rehearing, two members of the supreme court recused themselves-one, who had been photographed vacationing with Blankenship while the appeal was pending, and another, who had publicly derided Blankenship as a "clown." Benjamin, however, declined another request to recuse, as the acting chief justice appointed replacements for the two justices who had stepped aside, and in a second three to two decision, cast the deciding vote in Massey's favor.
The question for the United States Supreme Court was whether Justice Benjamin's failure to disqualify himself deprived Caperton of due process, and this spring the Court held that under the "extreme" facts of this case, it did. The Supreme Court's decision in Caperton is of enormous importance. For years, surveys have shown that an overwhelming majority of the public thinks judges are influenced by the campaign contributions they receive, which has deeply troubled AJS and other organizations dedicated to promoting impartial justice. In Caperton, the Supreme Court ruled that there is a constitutional dimension to this concern: at some point, the risk that campaign support will influence judicial decision making becomes intolerable.
The Court did not undertake to define with precision the point at which campaign support gives rise to a due process-violating likelihood of bias, but took pains to emphasize it is an extremely rare event, limited to highly unusual facts of the sort at issue in Caperton. In his dissent, Chief Justice Roberts nonetheless worried that the Court's opinion opened a Pandora's box of litigation, and listed 40 questions that the decision left unanswered. The Chief Justice's concerns should not be taken lightly, and if the states respond to Caperton with inaction and indifference, the quagmire he anticipates could well come to pass. But there is a way to avoid such problems: disqualification reform.
In the majority opinion, Justice Kennedy emphasized that states can (and do) establish disqualification standards more rigorous than due process requires: Whereas the due process clause is triggered by a "likelihood" or "probability" of bias, the disqualification rules of virtually every state (including West Virginia) require judges to recuse themselves when their impartiality "might reasonably be questioned." If state judicial systems have procedures in place to ensure that judges understand and follow more exacting disqualification rules, legitimate due process problems need never arise.
In Caperton, for example, Justice Benjamin's problems began with a misunderstanding of West Virginia's disqualification rules. The issue of whether a justice's impartiality might reasonably be questioned is all but universally understood as a matter of appearance or perception, to be resolved by determining whether a reasonable person, infonned of the relevant facts, might think that the judge was less than impartial. …